SZEHL v Minister for Immigration
[2006] FMCA 1752
•27 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEHL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1752 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of show cause application as incompetent – applicant notified of Tribunal decision in 2002 and show cause application not filed until October 2006. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.477 Migration Litigation Reform Act 2005 (Cth) |
| MZXJP v Minister for Immigration & Anor [2006] FMCA 1010 SZBJP v Minister for Immigration [2006] FMCA 1098 SZBVC v Minister for Immigration & Anor [2006] FMCA 834 SZEKC v Minister for Immigration [2006] FCA 1065 |
| Applicant: | SZEHL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2940 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 27 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr J Wright Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed as incompetent.
No further application by this applicant to review the decision of the Refugee Review Tribunal made on 25 November 2002 and handed down on 19 December 2002 is to be accepted for filing, except by leave of the Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2940 of 2006
| SZEHL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application under the Migration Act 1958 (Cth) (“the Migration Act”) filed on 12 October 2006. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) said to have been made on 25 November 2002. The applicant asserts notification to him of the decision on 19 December 2002.
The application is supported by two affidavits by the applicant. The first annexes a decision of the Tribunal handed down on 19 December 2002. The second supports a further application by the applicant for an extension of time for the filing of his show cause application.
The Minister’s response to the show cause application and the application for an extension of time was filed on 27 October 2006. The Minister opposes the application on three bases, noting that there had been earlier judicial review proceedings in relation to the Tribunal decision and that the applicant has not filed his show cause application within the time permitted under the Migration Act. Further, the Minister asserts that the application does not establish any jurisdictional error in any event. The Minister relies on the affidavit of Jonathan Wright filed on 27 October 2006, which details the earlier judicial review proceedings in respect of the Tribunal decision. I note that the applicant was unsuccessful in all of those earlier proceedings.
The legal position is set out quite clearly in the Minister’s written outline of submissions filed on 15 November 2006. In particular, I adopt for the purposes of this judgment paragraphs 3 to 10 of those submissions:
The combined effects of s.477 and clause 42 of the Migration Litigation Reform Act 2005 (Cth) is that if the Court can be satisfied that the applicant was actually notified of the decision before 1 December 2005, the decision is deemed to have been actually notified to the applicants on 1 December 2005, and time will run from that date. Taking into account the 28 days, plus 56 days referred to in s.477(2), this means that applications in relation to decisions actually notified before 1 December 2005 are incompetent if they are filed on or after 24 February 2006.[1]
There is incontrovertible evidence that the applicant received notification of the Tribunal’s decision prior to 1 December 2005.
By application for an order nisi filed on 10 January 2003 in the High Court of Australia, the applicant sought judicial review of the same Tribunal decision. On 7 February 2003, Justice Hayne ordered that the proceedings be remitted to the Federal Court of Australia. On 21 July 2003, Justice Selway ordered, inter alia, the applicant to file and serve an amended application by 29 August 2003 specifying precisely the error or errors upon which the decision under review was challenged. On 12 September 2003, Justice Lander made orders disposing of the matter on the basis that the applicant had failed to comply with the orders of Justice Selway.
By application filed on 30 August 2004 in the Federal Magistrates Court, the applicant sought judicial review of the same Tribunal decision. On 7 February 2005, the applicant filed a Notice of Discontinuance of the Federal Magistrates Court proceedings.
There can be no doubt that the applicant received actual notification of the Tribunal decision prior to commencing the earlier proceedings in the High Court on 10 January 2003 and this Court on 30 August 2004.[2]
Furthermore, in the current application the first applicant states that he received notification of the Tribunal decision on 19 December 2002.
The current application was filed on 12 October 2006. The application has been filed outside the 84 day period set in s.477(2)(a) and the Court has no discretion to extend time.[3]The present application is clearly incompetent and that is sufficient for the Court to dispose of this matter.[4]
Section 477 applies not only to privative clause decisions but also, by virtue of the definition of “migration decision” in section 5 of the Act, to a purported privative clause decision or a non-privative clause decision.[5] This means the time limits affect all migration decisions, whether or not they are affected by jurisdictional error.[6]
[1] SZBVC v Minister for Immigration & Anor [2006] FMCA 834 per Smith FM at [17].
[2] SZBJP v Minister for Immigration [2006] FMCA 1098 per Barnes FM at [4].
[3] MZXJP v Minister for Immigration & Anor [2006] FMCA 1010 per McInnis FM; SZEKC v Minister for Immigration [2006] FCA 1065 per Cowdroy J at [5].
[4] SZBJP v Minister for Immigration [2006] FMCA 1098 per Barnes FM at [8].
[5] SZBJP v Minister for Immigration [2006] FMCA 1098 per Barnes FM at [2].
[6] SZEKC v Minister for Immigration [2006] FCA 1065 per Cowdroy J at [5].
It is now well established that since 1 December 2005 this court has no jurisdiction to entertain an application for review under the Migration Act unless the application is filed within 84 days of actual notification of the Tribunal decision. Where that notification occurs before 1 December 2005, actual notification is deemed to have occurred on 1 December 2005.
In the light of the earlier judicial review proceedings in respect of the Tribunal decision, there can be no doubt that the applicant must have been notified of the Tribunal decision well before 1 December 2005. He himself asserts actual notification on 19 December 2002. His judicial review application would have needed to have been filed by 24 February 2006 in order for it to be competent. It was not filed until 12 October 2006.
The application should therefore be dismissed as incompetent, and I will so order.
In addition, any further application by this applicant to review the same Tribunal decision would also be incompetent. Such a further application should not be received by the registry without leave of the Court. I will so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the amount of $1,500. That is a party-party assessment, noting that actual costs incurred to date have been $1,900 or thereabouts. The applicant did not wish to be heard on costs. Scale costs under the Federal Magistrates Court Rules 2001 (Cth) at this point would be $1,000. However, the Minister has been put to additional work in preparing for this first court date in the preparation of Mr Wright’s affidavit and written submissions. I accept that in the circumstances, costs of not less than $1,500 have been properly and reasonably incurred on the part of the Minister when assessed on a party-and-party basis. I will therefore order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $1,500.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 December 2006
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